Veitch Penny LLP - Exeter | Crediton, Devon

Case

Pacitti Jones v O'Brien
Employment Appeal Tribunal

Issues

(1) Unfair dismissal
(2) Continuity of employment
(3) S. 94 Employment Rights Act 1996

Facts

Ms O’Brien started work for Pacitti Jones on 8th April 2002. In a letter dated 27th March 2003, she was given one week's written notice to terminate her employment. The letter was posted and delivered by hand to her home on the same day while she was away on holiday. She did not receive the letter until the following Monday 31st March 2003.

O’Brien brought a claim for unfair dismissal. At first instance it was held that she did not have one year’s continuity of employment so could not bring her claim. It found that O’Brien’s period of notice began on 28th March and expired on Thursday 3rd April.

The matter was then appealed to the Employment Appeal Tribunal (EAT).

Decision

It was accepted by both parties that the period of one week’s notice of termination for Ms O’Brien’s contract of employment started on 1st April 2003. It was also accepted by both parties that the period of notice of termination ended on 7th April 2003.

In its appeal the employer argued that the period of one year started on 8th April 2002 and ended on 8th April 2003, not a day earlier as agreed. This would mean Ms O'Brien was prevented from making a claim of unfair dismissal.

The appeal was dismissed. It was held that the period of 12 calendar months beginning on 8th April 2002 ended on 7th April 2003. As this was the date on which the employment was effectively terminated, Ms O’Brien had therefore been continuously employed for a period of "not less than one year" as required by Section 108 of the Employment Rights Act 1996 and was able to proceed with her claim.

Comments

This case highlights the importance of checking the relevant provisions when considering dismissal of an employee with less than one year’s continuity of employment. Furthermore, the effect of the Dispute Resolution Regulations should also be borne in mind. An employer who dismisses an employee with less than one year's continuous employment without using the statutory dismissal procedure runs the risk of a finding of automatic unfair dismissal, if it is subsequently found that the employee is entitled to make a claim.

Rachel Billen – Associate Solicitor, Commercial Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it